The EPA says its request is “a petition for review of final agency action, not an appeal from the ruling of a district court,” according to the petition, which was filed with the United States Court of Appeals D.C. Circuit on Oct. 5. The EPA is seeking an en banc rehearing of the Court’s Aug. 21 decision to vacate EPA’s Cross-State Air Pollution Rule. Filing en banc requires the case to be heard before the full D.C. Circuit of eight judges. A majority – five judges – must rule in favor of the case being reconsidered in order for the decision to be overturned.

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Jane Montgomery, partner at Schiff Hardin LLP, said that the court could choose to reconsider en banc if it recognizes that EPA took “the unusual FIP (Federal Implementation Plan) step” largely because of the D.C. Circuit’s prior ruling about the Clean Air Interstate Rule (CAIR). However, the court could decide that EPA had seemingly ignored the prior court’s ruling and subsequently allow the panel decision to stand.

If the court grants a rehearing and the decision to overturn CSAPR is reversed, state and industry petitioners could take the case to the U.S. Supreme Court.

If the court denies a rehearing, EPA may then appeal the decision to the Supreme Court. However, the risks of an adverse ruling – agreeing with the current opinion – are so high that it’s unlikely EPA will appeal to the Supreme Court, Montgomery said.

In its petition, EPA said the court panel’s decision conflicts with “numerous” previous Clean Air Act court decisions. “The panel’s decision upends the appropriate relationship of the judicial, legislative, and executive branches of government by rewriting clear legislation, ignoring explicit statutory jurisdictional limits, and stepping into the realm of matters reserved by Congress and the courts to the technical expertise of administrative agencies.”

EPA also said in the petition that the panel’s decision on EPA’s authority to issue FIPs is inconsistent with court precedent.

Since the court’s August ruling, CSAPR’s predecessor, the Clean Air Interstate Rule, has been re-activated.

“CSAPR was the most complicated rule-making I’ve ever been engaged in,” said Gina McCarthy, assistant administrator for EPA’s Office of Air and Radiation during PennWell’s COAL-GEN event on Aug. 15. “We had to look at two years of air modeling to understand where the pollution was coming from.”